The Supreme Court, voting 6-3, on Monday rejected a constitutional challenge to Indiana’s law requiring voters to show a government-issued photo ID before they may cast a ballot.  Three Justices said the evidence offered against the requirement in Indiana did not support a challenge to the law as written — that is, a “facial” challenge – and three others said the law only imposed a minimal and justified burden on voters. Three Justices dissented.  The decision means that the law will be enforced without a legal cloud over it in the presidential primary election in Indiana on May 6.  About half of the states have such laws.

The decision, in the case of Crawford v. Marion County Election Board (07-21) and a companion case, was the only ruling of the day.  The Court also issued new orders, but granted review of no new cases. The Court took no action on a major new case testing whether U.S. and foreign business firms may be sued for an alleged role in the apartheid policies of South Africa (American Isuzu Motors, et al., v. Ntsebeza, et al. (07-919). At issue is a Second Circuit Court ruling allowing that massive lawsuit to go forward in District Court.

The voter ID ruling may turn out to be a significant victory for Republicans at election time, since the requirement for proof of identification is likely to fall most heavily on voters long  assumed to be identified with the Democrats — particularly, minority and poor voters.  The GOP for years has been actively pursuing a campaign against what it calls “voter fraud,” and the Court’s ruling Monday appears to validate that effort, at least in part.  The main opinion said states have a valid interest in preventing voting by those not entitled to do so, even if there is no specific proof of that kind of fraud in the state.

While the Court’s main opinion said it was “fair to infer that partisan considerations may have played a significant role” in enacting the photo ID law, it went on to say that that law was neutral in its application and was adequately supported by the justifications the state had offered.

Putting together the three votes of Justices who found the paate rticulart  challenge to Indiana’s law wanting on the evidence, with the votes of the three dissenters, means, however, that a majority of the Court has not barred all future challenges to voter ID laws, provided future cases seek to test such laws as they were actually applied in a specific election.  Still, the plurality opinion that announced the Court’s judgment — written by Justice John Paul Stevens — probably means that any such “as-applied” challenges would not be easy to make.

Stevens’ opinion was joined by Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy.  Justice Antonin Scalia wrote a separate opinion, joined by Justices Samuel A. Alito, Jr., and Clarence Thomas, finding no discrimination in the law since all voters are treated alike. Justice David H. Souter wrote one of the dissenting opinions, joined by Justice Ruth Bader Ginsburg.  Justtice Stephen G. Breyer dissented alone.

Justice Stevens’ opinion stresses that the Court was ruling on the law only as written, saying the Democratic challengers faced “a heavy burden of persuasion in seeking to invalidate” the 2005 law “in all its applications.”  The opinion said that the challengers’ evidence did not make it possible to quantify the size of any burden on voters, or to judge what part of any burden was justified.

Finding that the state’s arguments in favor of the photo ID law were sufficient to defeat the as-written challenge, Stevens said states have a valid interest “in deterring and detecting voter fraud.”  The state, he added, “has a valid interest in participating in a nationwide effort to improve and modernize election procedures criticized as antiquated and inefficient.”

The Court applied what it called a flexible balancing approach in judging the law’s validity, weighing the interests claimed by the state against the claimed burdens argued by the challengers.  The balance came out in favor of the state.

Some states have long required voters to identify themselves at the polling place, but no state had a mandatory requirement to produce a government-issued photo ID until Indiana and Georgia did so in 2005.  Indiana’s law is now considered to be the most onerous in the nation. It went into effect July 1, 2005.

A 2002 federal law, the Help America Vote Act, is less strict.  It allows a voter to show either a photo ID or some other document, such as a bank statement or a paycheck.  Justice Stevens noted that, while federal law did not require Indiana to enact its law, Congress has shown that it “believes that photo identification is one effective method of establishing a voter’s qualification to vote and that the integrity of elections is enhanced through improved technology.”

In discussing the claim that ID laws are needed to combat voter fraud, Stevens noted that the record in the Indiana case “contains no evidencde of any [voter impersonation] fraud actually occurring in Indiana at any time in its history.”  Still, he wrote, “it remains true that flagrant examples of such fraud in other parts of the country have been documented throughout this nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting” in an absentee ballot scandal in 2003 in a mayoral election “demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.”

The main opinion found that the Indiana law may fall somewhat more heavily upon older persons born in other states, persons with economic or other limitations making it difficult for them to get a birth certificate or other document in order to get a state-issued ID, homeless individuals, and persons whose religious faith raises an obstacle to being photographed.”  But Stevens said Indiana does take steps to allow persons to cast provisional ballots and then prove their identity after the election.

Posted in Crawford v. Marion County Election Bd., Uncategorized